EXHIBIT 4.1
RITE AID CORPORATION
as Issuer
TO
XXXXXX TRUST AND SAVINGS BANK
As Trustee
__________________________
INDENTURE
Dated as of September 22, 1998
__________________________
$200,000,000
6% Dealer remarketable securities(SM) ("Drs(SM)") due 2013
--------------------------------------------------------------------------------
_____________
"Dealer remarketable securities(SM)" and "Drs(SM)" are service marks of X.X.
Xxxxxx Securities Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture dated as of September 22, 1998
Trust Indenture Indenture
Act Section Section
--------------- ---------
(S) 310 (a)(1).................................. 6.09
(a)(2).................................. 6.09
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b)..................................... 6.08
6.10
(S) 311 (a)..................................... 6.13
(b)..................................... 6.13
(b)(2).................................. 7.03
(S) 312 (a)..................................... 7.01
7.02(a)
(b)..................................... 7.02(b)
(c)..................................... 7.02(c)
(S) 313 (a)..................................... 7.03(a)
(b)..................................... 7.03(a)
(c)..................................... 7.03(a)
(d)..................................... 7.03(b)
(S) 314 (a)..................................... 7.04
(b)..................................... Not Applicable
(c)(1).................................. 1.02
(c)(2).................................. 1.02
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 1.02
(S) 315 (a)..................................... 6.01
(b)..................................... 6.02
7.03(a)
(c)..................................... 6.01
(d)..................................... 6.01
(d)(1).................................. 6.01(a)(1)
(d)(2).................................. 6.03(h)
(d)(3).................................. 6.01(c)(3)
(e)..................................... 5.14
Trust Indenture Indenture
Act Section Section
--------------- ---------
(S) 316 (a)(1)(A)............................... 5.12
(a)(1)(B)............................... 5.13
(a)(2).................................. Not Applicable
(b)..................................... 5.08
(S) 317 (a)(1).................................. 5.03
(a)(2).................................. 5.04
(b)..................................... 10.03
(S) 318 (a)..................................... 1.07
____________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
iii
Reconciliation and tie between Trust Indenture Act
TABLE OF CONTENTS
-------------
Page
----
ARTICLE 1
---------
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
-------------------------------------------------------
Section 1.01. Definitions.....................................................................1
--
Section 1.02. Compliance Certification and Opinions..........................................14
--
Section 1.03. Form of Documents Delivered to Trustee.........................................14
--
Section 1.04. Acts of Holders; Record Date...................................................15
--
Section 1.05. Notices, Etc., to Trustee and the Company......................................16
--
Section 1.06. Notice to Holders; Waiver......................................................16
--
Section 1.07. Conflict with Trust Indenture Act..............................................17
--
Section 1.08. Effect of Headings and Table of Contents.......................................17
--
Section 1.09. Successors and Assigns.........................................................17
--
Section 1.10. Separability Clause............................................................17
--
Section 1.11. Benefits of Indenture..........................................................17
--
Section 1.12. Governing Law..................................................................18
--
Section 1.13. Legal Holidays.................................................................18
--
ARTICLE 2
---------
SECURITY FORMS
--------------
Section 2.01. Forms Generally; Initial Forms of Rule 144A and Regulation S Securities........18
--
Section 2.02. Form of Face of Security.......................................................19
--
ARTICLE 3
---------
THE SECURITIES
--------------
Section 3.01. Title and Terms................................................................34
--
Section 3.02. Denominations..................................................................34
--
Section 3.03. Execution, Authentication, Delivery and Dating.................................34
--
Section 3.04. Temporary Securities...........................................................36
--
Section 3.05. Global Securities..............................................................36
--
Section 3.06. Registration, Registration of Transfer and Exchange; Securities Act Legends....38
--
Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities...............................41
--
Section 3.08. Payment of Interest; Interest Rights Preserved.................................42
--
Section 3.09. Persons Deemed Owners..........................................................43
--
Section 3.10. Cancellation...................................................................44
--
Section 3.11. Computation of Interest........................................................44
--
Section 3.12. Cusip Numbers..................................................................44
--
Page
----
ARTICLE 4
---------
SATISFACTION AND DISCHARGE
--------------------------
Section 4.01. Satisfaction and Discharge of Indenture........................................45
--
Section 4.02. Application of Trust Money.....................................................46
--
ARTICLE 5
---------
REMEDIES
--------
Section 5.01. Events of Default..............................................................47
--
Section 5.02. Acceleration of Maturity; Rescission and Annulment.............................49
--
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................50
--
Section 5.04. Trustee May File Proofs of Claim...............................................51
--
Section 5.05. Trustee May Enforce Claims Without Possession of Securities....................51
--
Section 5.06. Application of Money Collected.................................................52
--
Section 5.07. Limitation on Suits............................................................52
--
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest......53
--
Section 5.09. Restoration of Rights and Remedies.............................................53
--
Section 5.10. Rights and Remedies Cumulative.................................................53
--
Section 5.11. Delay or Omission Not Waiver...................................................53
--
Section 5.12. Control by Holders.............................................................54
--
Section 5.13. Waiver of Past Defaults........................................................54
--
Section 5.14. Undertaking for Costs..........................................................54
--
Section 5.15. Waiver of Stay or Extension Laws...............................................55
--
ARTICLE 6
---------
THE TRUSTEE
-----------
Section 6.01. Certain Duties and Responsibilities............................................55
--
Section 6.02. Notice of Defaults.............................................................55
--
Section 6.03. Certain Rights of Trustee......................................................55
--
Section 6.04. Not Responsible for Recitals or Issuance of Securities.........................57
--
Section 6.05. May Hold Securities............................................................57
--
Section 6.07. Compensation and Reimbursement.................................................57
--
Section 6.08. Disqualification; Conflicting Interest.........................................58
--
Section 6.09. Corporate Trustee Required; Eligibility........................................58
--
Section 6.10. Resignation and Removal; Appointment of Successor..............................59
--
Section 6.11. Acceptance of Appointment by Successor.........................................60
--
ii
Page
----
Section 6.12. Merger, Conversion, Consolidation or Succession to Business....................61
--
Section 6.13. Preferential Collection of Claims Against Company..............................61
--
ARTICLE 7
---------
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
-------------------------------------------------
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders......................61
--
Section 7.02. Preservation of Information; Communications to Holders.........................62
--
Section 7.03. Reports by Trustee.............................................................62
--
Section 7.04. Reports by Company.............................................................62
--
Section 7.05. Officers' Certificate with Respect to Change in Interest Rates.................63
--
ARTICLE 8
---------
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
----------------------------------------------------
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms............................63
--
Section 8.02. Successor Substituted..........................................................64
--
ARTICLE 9
---------
SUPPLEMENTAL INDENTURES
-----------------------
Section 9.01. Supplemental Indentures Without Consent of Holders.............................65
--
Section 9.02. Supplemental Indentures with Consent of Holders................................66
--
Section 9.03. Execution of Supplemental Indentures...........................................66
--
Section 9.04. Effect of Supplemental Indentures..............................................67
--
Section 9.05. Conformity with Trust Indenture Act............................................67
--
Section 9.06. Reference in Securities to Supplemental Indentures.............................67
--
ARTICLE 10
----------
COVENANTS
---------
Section 10.01. Payment of Principal, Premium and Interest....................................67
--
Section 10.02. Maintenance of Office or Agency...............................................67
--
Section 10.03. Money for Security Payments to Be Held in Trust...............................68
--
Section 10.04. Corporate Existence...........................................................69
--
Section 10.05. Maintenance of Properties.....................................................70
--
Section 10.06. Payment of Taxes and Other Claims.............................................70
--
Section 10.07. Insurance.....................................................................70
--
Section 10.08. Restrictions on Funded Debt of Restricted Subsidiaries........................70
--
iii
Page
----
Section 10.09. Restriction on Sales with Leases Back.........................................71
--
Section 10.10. Restrictions on Secured Debt..................................................71
--
Section 10.11. Restrictions on Permitting Unrestricted Subsidiaries to become Restricted
Subsidiaries..................................................................73
--
Section 10.12. Statement by Officers as to Default...........................................73
--
Section 10.13. Waiver of Certain Covenants...................................................73
--
ARTICLE 11
----------
REDEMPTION OF SECURITIES
------------------------
Section 11.01. Right of Redemption...........................................................74
--
Section 11.02. Applicability of Article......................................................74
--
Section 11.03. Election to Redeem; Notice to Trustee.........................................74
--
Section 11.04. Selection by Trustee of Securities to Be Redeemed.............................74
--
Section 11.05. Notice of Redemption..........................................................75
--
Section 11.06. Deposit of Redemption Price...................................................75
--
Section 11.07. Securities Payable on Redemption Date.........................................76
--
Section 11.08. Securities Redeemed in Part...................................................76
--
ARTICLE 12
----------
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
Section 12.01. Company's Option to Effect Defeasance or Covenant Defeasance..................76
--
Section 12.02. Defeasance and Discharge......................................................77
--
Section 12.03. Covenant Defeasance...........................................................77
--
Section 12.04. Conditions to Defeasance or Covenant Defeasance...............................77
--
Section 12.05. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions......................................................79
--
Section 12.06. Reinstatement.................................................................80
--
iv
Page
----
ANNEX A Form of Regulation S Certificate..........................A-1
ANNEX B Form of Restricted Securities Certificate.................B-1
ANNEX C Form of Unrestricted Securities Certificate...............C-1
INDENTURE, dated as of September 22, 1998, between Rite Aid Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "COMPANY"), having its principal office at 00 Xxxxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxxxx, 00000, Xxxxxx Trust and Savings Bank, an Illinois
banking corporation, as Trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 6 % Dealer
remarketable securities due 2013 (the "SECURITIES") of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary (i) to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and (ii) to make this Indenture a
valid agreement of the Company, all in accordance with their respective terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1.
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
(whether or not such is indicated herein), and, except as otherwise herein
expressly provided, the term "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted as consistently applied by the
Company at the date of such computation; and
(d) the words "HEREIN", "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 6, are defined in that Article.
-
"ACT", when used with respect to any Holder, has the meaning specified in
Section 1.04.
----
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or con trolled by or under direct or indirect common control with
such Person. For the purposes of this definition, "CONTROL" when used with
respect to any Person means the power to direct the manage ment and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AGENT MEMBER" means any member of, or participant in, the Depositary.
"APPLICABLE PROCEDURES" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, Euroclear and Cedel, in each
case to the extent applicable to such transaction and as in effect at the time
of such transfer or transaction.
"ATTRIBUTABLE DEBT" means, as to any particular Sale and Leaseback
Transaction under which the Company or any Restricted Subsidiary is at the time
liable, at any date as of which the amount thereof is to be determined (i) in
the case of any such transaction involving a Capital Lease, the amount on such
date of the Capital Lease Obligation thereunder, or (ii) in the case of any
other such Sale and Leaseback Transaction, the then present value of the minimum
rental obligation under such Transaction during the remaining term thereof
(after giving effect to any extensions at the option of the lessor) computed by
discounting the respective rental payments at the actual interest factor
included in such payment, or, if such interest factor included in such payment,
or, if such interest factor cannot be readily determined, at the rate per annum
equal to the rate of interest on the Securities. The amount of any rental
payment required to be made under any such Sale and Leaseback Transaction not
involving a Capital Lease may exclude amounts required to be paid by the lessee
on account of maintenance and repairs,
2
insurance, taxes, assessments, utilities, operating and labor costs and similar
charges.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York or in the
city in which the Corporate Trust Office is located are authorized or obligated
by law, executive order or governmental decree to close.
"CAPITAL LEASE" means any lease of property which, in accordance with
generally accepted accounting principles, should be capitalized on the lessee's
balance sheet or for which the amount of asset and liability thereunder as if so
capitalized should be disclosed in a note to such balance sheet; and "Capital
Lease Obligation" means the amount of the liability so capitalized or disclosed
(or which should be so disclosed) in a note in respect of a Capital Lease.
"CEDEL" means Cedel Bank, S.A. (or any successor securities clearing
agency).
"CLOSING DATE" means September 22, 1998.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "COMPANY" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "COMPANY" shall mean such
successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order signed
in the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee.
3
"CONSOLIDATED FUNDED DEBT" means the total of all outstanding Funded Debt of
the Company and its Restricted Subsidiaries, determined on a consolidated basis
in accordance with generally accepted accounting principles.
"CONSOLIDATED NET TANGIBLE ASSETS" means (a) the total amount of assets
(less applicable reserves and other properly deductible items) which under
generally accepted accounting principles would be included on a consolidated
balance sheet of the Company and its Restricted Subsidiaries after deducting
therefrom (i) all liabilities and liability items, including amounts in respect
of obligations or guarantees of obligations under leases, which under generally
accepted accounting principles would be included on such balance sheet, except
Funded Debt, capital stock and surplus, surplus reserves and provisions for
deferred income taxes, and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which in each
case under generally accepted accounting principles would be included on such
consolidated balance sheet, less (b) the amount which would be so included on
such consolidated balance sheet for Investments (less applicable reserves) (i)
made in Unrestricted Subsidiaries or (ii) made in corporations while they were
Unrestricted Subsidiaries but which at the time of computation are not
Subsidiaries of the Company.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee in the
City of Chicago, State of Illinois, at which at any particular time its
corporate trust business shall be administered.
"CORPORATION" means a corporation, association, company, joint-stock
company, partnership or business trust.
"DEPOSITARY" means, with respect to any Securities, a clearing agency that
is registered as such under the Exchange Act and is designated by the Company to
act as Depositary for such Securities (or any successor securities clearing
agency so registered).
"DTC" means The Depository Trust Company, a New York corporation.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System (or any successor securities
clearing agency).
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
----
"EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the Exchange and
Registration Rights Agreement, dated as of September 22, 1998, among the
Company, X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx & Co. and Xxxxxx
4
Xxxxxxx & Co. Incorporated, as representatives of the Initial Purchasers, and
the Holders from time to time as provided therein, as such agreement may be
amended from time to time.
"EXCHANGE OFFER" means an offer made by the Company pursuant to the Exchange
and Registration Rights Agreement under an effective registration statement
under the Securities Act to exchange securities substantially identical to
Outstanding Securities (except for the differences provided for herein) for
Outstanding Securities.
"EXCHANGE REGISTRATION STATEMENT" means a registration statement of the
Company under the Securities Act registering Exchange Securities for
distribution pursuant to the Exchange Offer.
"EXCHANGE ACT" refers to the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"EXCHANGE SECURITIES" means the Securities issued pursuant to the Exchange
Offer and their Successor Securities.
"FUNDED DEBT" means any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed, whether secured or unsecured, maturing more
than one year after the date of determination thereof and any indebtedness,
regardless of its term, renewable pursuant to the terms thereof or of a
revolving credit or similar agreement effective for more than one year after the
date of the creation of the indebtedness, which would, in accordance with
generally accepted accounting practice, be classified as funded debt but shall
not include:
(a) any indebtedness for the payment, redemption or satisfaction of which
money (or evidences of indebtedness, if permitted under the instrument creating
such indebtedness) in the necessary amount shall have been deposited in trust
with the Trustee or proper depository either at or before maturity or redemption
date thereof; or
(b) guarantees arising in connection with the sale, discount, guarantee or
pledge of Securities, chattel mortgages, leases, accounts receivable, trade
acceptances and other paper arising, in the ordinary course of business, out of
installment or conditional sales to or by, or transactions involving title
retention with, distributors, dealers or other customers of merchandise,
equipment or services or guarantees other than guarantees of indebtedness for
borrowed money; or
(c) any liability resulting from the capitalization of lease rentals.
5
"GLOBAL SECURITY" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDEBTEDNESS" means (i) all items of indebtedness or liability (except
capital and surplus) which in accordance with generally accepted accounting
principles would be included in determining total liabilities as shown on the
liability side of a balance sheet as at the date as of which indebtedness is to
be determined, (ii) indebtedness secured by any Mortgage existing on property
owned subject to such Mortgage, whether or not the indebtedness secured thereby
shall have been assumed, and (iii) guarantees, endorsements (other than for
purposes of collection) and other contingent obligations in respect of, or to
purchase or otherwise acquire, indebtedness of others, unless the amount thereof
is included in indebtedness under the preceding clauses (i) or (ii); provided,
however, that any obligations or guarantees of such obligations or guarantees of
obligations in respect of lease rentals, whether or not such obligations or
guarantees of obligations would be included as liabilities on a consolidated
balance sheet of the Company and its Restricted Subsidiaries, shall not be
included in indebtedness.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"INITIAL PURCHASERS" means X.X. Xxxxxx Securities Inc., Xxxxxxx, Xxxxx & Co.
and Xxxxxx Xxxxxxx & Co. Incorporated, as purchasers of the Securities from the
Company pursuant to the Purchase Agreement.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Securities.
"INVESTMENTS" mean and include all investments, whether by acquisition of
stock or indebtedness, or by loan, advance, transfer of property, capital
contribution or otherwise, made by the Company or by any Restricted Subsidiary,
and shall include all guarantees, direct or indirect, by the Company or any
Restricted Subsidiary of any indebtedness of an Unrestricted Subsidiary which by
its term matures 12 months or less from the time of computation of the amount
thereof to the extent not included as a liability or liability item on the
consolidated balance sheet of the Company and its Restricted Subsidiaries, but
shall not include
6
accounts receivable of the Company or of any Restricted Subsidiary arising from
the sale of merchandise in the ordinary course of business.
"MATURITY", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"MORTGAGE" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered
to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"ORIGINAL SECURITIES" means all Securities other than Exchange Securities.
"OUTSTANDING", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been transferred pursuant to Section 3.06 or
----
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide
7
purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities paid pursuant to Section 3.07;
----
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
----
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of September 17,
1998, between the Company and the Initial Purchasers.
"REDEMPTION DATE", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
8
"REDEMPTION PRICE", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"REGISTRATION DEFAULT" means the occurrence of any of the following events:
(i) the Company has not filed the Exchange Registration Statement or Shelf
Registration Statement on or before the date on which such registration
statement is required to be filed pursuant to the Exchange and Registration
Rights Agreement, (ii) the Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
on or before the date on which such registration statement is required to become
or be declared effective under the requirements of the Exchange and Registration
Rights Agreement, (iii) the Exchange Offer has not been completed on or before
the date required by the Exchange and Registration Rights Agreement or (iv) any
Exchange Registration Statement or Shelf Registration Statement required to be
filed pursuant the Exchange and Registration Rights Agreement is filed and
declared effective but shall thereafter either be withdrawn by the Company or
shall become subject to an effective stop order issued pursuant to Section 8(d)
of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared
effective.
"REGISTRATION DEFAULT PERIOD" means any period during which a Registration
Default has occurred and is continuing.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" means a certificate substantially in the form set
forth in Annex A.
"REGULATION S GLOBAL SECURITY" has the meaning specified in Section 2.01.
"REGULATION S LEGEND" means a legend substantially in the form of the legend
required in the form of Security set forth in Section 2.02 to be placed upon
Regulation S Securities.
"REGULATION S SECURITIES" means all Securities required pursuant to Section
3.06(c) to bear a Regulation S Legend.
-------
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or assistant trust officer, or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the
9
above designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED PERIOD" means the period of 40 consecutive days beginning on the
later of (i) the day on which Securities are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the Closing Date.
"RESTRICTED SECURITIES" means all Securities required pursuant to Section
3.06(c) to bear a Restricted Securities Legend. Such term includes the
-------
Restricted Global Securities.
"RESTRICTED SECURITIES CERTIFICATE" means a certificate substantially in for
form set forth in Annex B.
"RESTRICTED SECURITIES LEGEND" means a legend substantially in the form of
the legend required in the form of Security set forth in Section 202 to be
placed upon a Restricted Security.
"RESTRICTED SUBSIDIARY" means any Subsidiary, whether existing on or after
the date of this Indenture, unless such Subsidiary is an Unrestricted
Subsidiary.
"RULE 144" means Rule 144 under the Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A SECURITIES" means the Securities purchased by the Initial
Purchasers from the Company pursuant to the Purchase Agreement, other than the
Regulation S Securities.
"SECURED DEBT" means indebtedness for money borrowed which is secured by a
mortgage, pledge, lien, security interest or encumbrance on property of the
Company or any Restricted Subsidiary, but shall not include guarantees arising
in connection with the sale, discount, guarantee or pledge of notes, chattel
mortgages, leases, accounts receivable, trade acceptances and other paper
arising, in the ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention with, distributors,
dealers or other customers, of merchandise, equipment or services.
"SECURITIES" means Securities designated in the first paragraph of the
RECITALS OF THE COMPANY and includes the Original Securities and the Exchange
Securities.
10
"SECURITIES ACT" means the Securities Act of 1933, as it may be amended and
any successor act thereto.
"SECURITIES ACT LEGENDS" means the Registered Securities Legend and the
Regulation S Legend.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 3.06(a).
-------
"SHELF REGISTRATION STATEMENT" means a shelf registration statement under
the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Exchange and Registration Rights Agreement, registering
Original Securities for resale.
"SPECIAL INTEREST PAYMENTS" has the meaning specified in the form of
Securities set forth in Section 2.02.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a date
fixed by Trustee pursuant to Section 3.08.
----
"STATED MATURITY" means, with respect to any security, the date specified in
such security as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"SUBSIDIARY" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"SUCCESSOR SECURITY" of any particular Security means every Security issued
after, and evidencing all or a portion of the same debt as that evidenced by,
such particular Security; and, for the purpose of this definition, any Security
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
----
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
11
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
9.05; provided, however, that in the event the Trust Indenture Act of 1939 is
----
amended after such date, "TRUST INDENTURE ACT" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "TRUSTEE" shall mean
such successor Trustee.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary which, in accordance with
the provisions of this Indenture, has been designated by a Board Resolution as
an Unrestricted Subsidiary, in each case unless and until such Subsidiary shall,
in accordance with the provisions of this Indenture, be designated by Board
Resolution as a Restricted Subsidiary; and (b) any Subsidiary a majority of the
Voting Stock of which shall at the time be owned directly or indirectly by one
or more Unrestricted Subsidiaries.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such obligation evidenced by such depository receipt or a
specific payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the obligation set forth in
(i) or (ii) above or the specific payment of interest on or principal of such
obligation evidenced by such depository receipt.
"U.S. PERSON" means (i) any individual resident in the United States, (ii)
any partnership or corporation organized or incorporated under the laws of the
United States, (iii) any estate of which an executor or administrator is a U.S.
Person (other than an estate governed by foreign law and of which at least one
executor or administrator is a non-U.S. Person who has sole or shared investment
discretion with respect to its assets), (iv) any trust of which any trustee is a
U.S. Person (other than a trust of which at least one trustee is a non-U.S.
Person who has sole or shared investment discretion with respect to its assets
and no
12
beneficiary of the trust (and no settlor if the Trust is revocable) is a U.S.
Person), (v) any agency or branch of a foreign entity located in the United
States, (vi) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
Person, (vii) any discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States (other than such an account held for
the benefit or account of a non-U.S. Person), (viii) any partnership or
corporation organized or incorporated under the laws of a foreign jurisdiction
and formed by a U.S. Person principally for the purpose of investing in
securities not registered under the Securities Act (unless it is organized or
incorporated, and owned, by accredited investors within the meaning of Rule
501(a) under the Securities Act who are not natural persons, estates or trusts);
provided, however, that the term "U.S. PERSON" does not include (A) a branch or
agency of a U.S. Person that is located and operating outside the United States
for valid business purposes as a locally regulated branch or agency engaged in
the banking or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 9.02(o)(7) of Regulation S under the Securities Act and any other
similar international organizations, and their agencies, affiliates and pension
plans.
"VICE PRESIDENT", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "VICE PRESIDENT".
"VOTING STOCK" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary of which
at least 99% of the outstanding Voting Stock (other than directors' qualifying
shares) is at the time, directly or indirectly, owned by the Company, or by one
or more Wholly-owned Restricted Subsidiaries, or by the Company and one or more
Wholly-owned Restricted Subsidiaries.
Section 1.02. Compliance Certification and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required by the Trustee under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
13
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
14
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders; Record Date. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
----
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
----
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
15
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 1.05. Notices, Etc., to Trustee and the Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
16
Section 1.07. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act, that
is required under such Act to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be. Until such time as this
Indenture shall be qualified under the Trust Indenture Act, this Indenture, the
Company and the Trustee shall be deemed for all purposes hereof to be subject to
and governed by the Trust Indenture Act to the same extent as would be the case
if this Indenture were so qualified on the date hereof.
Section 1.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.10. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.11. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section l.12. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 1.13. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, or Redemption
Date, or at the Stated Maturity, as the case may be, provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
17
ARTICLE 2.
Security Forms
Section 2.01. Forms Generally; Initial Forms of Rule 144A and Regulation S
Securities. The Securities and the Trustee's certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
Upon their original issuance, Rule 144A Securities shall be issued in the
form of one or more Global Securities without interest coupons registered in the
name of DTC, as Depositary, or its nominee and deposited with the Trustee, as
custodian for DTC, in New York, New York, for credit by DTC to the respective
accounts of beneficial owners of the Securities represented thereby (or such
other accounts as they may direct). Such Global Securities, together with their
Successor Securities which are Global Securities other than the Regulation S
Global Security are collectively herein called the "RESTRICTED GLOBAL SECURITY".
Upon their original issuance, Regulation S Securities (herein called the
"REGULATION S GLOBAL SECURITY") shall be issued in the form of a single Global
Security without coupons registered in the name of DTC, as Depositary, or its
nominee and deposited with the Trustee at its Corporate Trust Office, as
custodian for DTC, for credit to Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System, and Cedel to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as they may direct) in accordance with the rules
thereof.
Section 2.02. Form of Face of Security. [IF THE SECURITY IS A RESTRICTED
SECURITY, THEN INSERT -- THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE
HOLDER (I) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS SECURITY OR THE LAST DATE ON WHICH THIS SECURITY WAS
HELD BY THE COMPANY, THE TRUSTEE OR ANY AFFILIATE OF ANY OF THE COMPANY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A,
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
18
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION PROVIDED
UNDER THE SECURITIES ACT (IF AVAILABLE); AND (II) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE
(UNLESS THIS CERTIFICATE IS HELD IN GLOBAL FORM) WITHIN TWO YEARS (OR SUCH
SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144(k) (OR ANY SUCCESSOR PROVISION)
UNDER THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
SECURITY OR THE LAST DATE ON WHICH THIS NOTE WAS HELD BY THE COMPANY OR ANY
AFFILIATE OF THE COMPANY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
SECURITY TO THE TRUSTEE. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING RESTRICTIONS; AND
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE ABOVE
PARAGRAPH.
THIS SECURITY WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER UNLESS THE
REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS ON TRANSFER SET
FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH
19
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST COMPANY IS
TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF THE SECURITY IS A REGULATION S SECURITY, THEN INSERT -- THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 , AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
RITE AID CORPORATION
6% DEALER REMARKETABLE SECURITY(SM) ("DRS.(SM)")
DUE 2013
No.
CUSIP:_________
Rite Aid Corporation, a Delaware corporation (hereinafter called the
"COMPANY"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum set forth on Schedule A hereof on October
1, 2013, at the office or agency of the Company in the City of Chicago, State of
Illinois, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to
20
pay interest, semi-annually on April 1 and October 1 of each year (each, an
"INTEREST PAYMENT DATE"), on said principal sum at the rate per annum specified
below, at such office or agency, in like coin or currency, from the April 1 or
October 1, as the case may be, to which interest on the Securities has been paid
preceding the date hereof (unless the date hereof is an April 1 or an October 1
to which interest has been paid, in which case from the date hereof, or unless
the date hereof is prior to any interest having been paid, in which case from
September 22, 1998) until payment of said principal sum has been made or duly
provided for. If the Company shall default in the payment of interest when due
on such April 1 or October 1, then this Security shall bear interest from the
next preceding date to which interest has been paid, or, if no interest has been
paid, from September 22, 1998. The interest so payable on any April 1 or October
1 shall be paid to the person in whose name this Security shall be registered at
the close of business on the fifteenth calendar day (whether or not a Business
Day) immediately preceding the related Interest Payment Date (each, a "REGULAR
RECORD DATE"). For purposes of this Security, "BUSINESS DAY" means any day other
than a Saturday, a Sunday or a day on which banking institutions in The City of
New York or in the city in which the Corporate Trust Office is located are
authorized or obligated by law, regulation, executive order or governmental
decree to be closed.
----------------------------
(SM) "Dealer remarketable security" and "Drs." are service marks of X.X. Xxxxxx
Securities Inc.
If and to the extent the Company shall default in the payment of the
interest due on any interest payment date, such defaulted interest shall be paid
to the person in whose name this Security is registered at the close of business
on a record date established for such payment by notice by or on behalf of the
Company to the holders of the Securities mailed by first-class mail not less
than fifteen days prior to such record date to their last address as they shall
appear upon the Security register, such record date to be not less than five
days preceding the date of payment of such defaulted interest. The Company may
pay interest by check mailed to the holder's address as it appears on the
Security register.
The rate of interest on this Security shall be 6% per annum to October 1,
2003 (the "REMARKETING DATE"); provided that, if any Registration Default occurs
under the Exchange and Registration Rights Agreement, then the per annum
interest rate on the Securities will increase for the period from the occurrence
of the Registration Default until such time as no Registration Default is in
effect (at which time the interest rate will be reduced to its initial rate) at
a per annum rate of 0.50%. If the Remarketing Dealer elects to remarket the
Securities pursuant to the Remarketing Agreement dated as of September 22, 1998
(the "REMARKETING AGREEMENT") between X.X. Xxxxxx Securities Inc., as
Remarketing Dealer (the
21
"REMARKETING DEALER"), and the Company, then, except as otherwise set forth on
the reverse hereof, (i) this Security shall be subject to mandatory tender to
the Remarketing Dealer for remarketing on the Remarketing Date, on the terms and
subject to the conditions set forth on the reverse hereof, and (ii) on and after
the Remarketing Date, this Security shall bear interest at the rate determined
by the Remarketing Dealer in accordance with the procedures set forth in Section
4 on the reverse hereof (the "INTEREST RATE TO MATURITY"). If the Remarketing
Dealer does not remarket the Securities pursuant to the Remarketing Agreement,
this Security shall be subject to mandatory tender to the Company for repurchase
on the Remarketing Date, on the terms and subject to the conditions set forth on
the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof.
22
IN WITNESS WHEREOF, the Company has caused this Security to be signed by
its duly authorized officers and has caused its corporate seal to be affixed
hereunto.
RITE AID CORPORATION
By: _________________________
Title:
Attest:
___________________________
Secretary
23
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
___________________________________
Authorized Officer
24
Form of Reverse of Security
RITE AID CORPORATION
6% DEALER REMARKETABLE SECURITY(SM) ("DRS.(SM)")
DUE 2013
1. Indenture. (a) This Security is one of the duly authorized issue of
debt securities of the Company (herein referred to as the "DEBT SECURITIES") of
the series hereinafter specified, all issued or to be issued under and pursuant
to an indenture dated as of September 22, 1998 (the "INDENTURE") between the
Company and Xxxxxx Trust and Savings Bank, as Trustee (herein referred to as the
"TRUSTEE"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders (the words "HOLDERS", "HOLDER", "SECURITYHOLDERS" or
"SECURITYHOLDER" mean the registered holder(s)) of the Debt Securities.
(b) This Security is one of the series designated as the 6% Dealer
remarketable securities(SM) ("DRS.(SM)") due 2013 of the Company and such series
is limited in aggregate principal amount to $200,000,000. References herein to
"SECURITIES" or "DRS." shall mean the Debt Securities of said series.
(c) All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than five Business Days prior to the Remarketing Date
(the "NOTIFICATION DATE"), the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase all (but not less than all) of
the outstanding Drs. on the Remarketing Date. If, and only if, the Remarketing
Dealer so elects, the Drs. shall be subject to mandatory tender to the
Remarketing Dealer for purchase and remarketing on the Remarketing Date, upon
the terms and subject to the conditions described herein and in the Remarketing
Agreement. The purchase price of the Drs. shall be equal to 100% of the
principal amount thereof. No holder or beneficial owner of any Securities shall
have any rights or claims under the Remarketing Agreement or against the Company
or the Remarketing Dealer as a result of the Remarketing Dealer not purchasing
such Securities.
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures with respect to the Securities set forth in the Remarketing Agreement
25
shall be subject to modification, without the consent of the holders of the
Securities, to the extent required by DTC or, if the book-entry system is no
longer available for the Securities at the time of the remarketing, to the
extent required to facilitate the tendering and remarketing of Securities in
certificated form. In addition, the Remarketing Dealer may modify the settlement
procedures without the consent of the holders of the Securities in order to
facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Securities in book-
entry form and (ii) it waives any discretionary right that it otherwise may have
under the Indenture to cause the Securities to be issued in certificated form.
4. Determination of Interest Rate to Maturity; Notification Thereof. The
Remarketing Dealer shall determine the interest rate the Drs. will bear from the
Remarketing Date to the Stated Maturity Date (the "INTEREST RATE TO MATURITY")
on the third Business Day immediately preceding the Remarketing Date (the
"DETERMINATION DATE") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers (defined below) for firm, committed bids to purchase
all outstanding Drs. at the Dollar Price (defined below), and by selecting the
lowest such firm, committed bid (regardless of whether each of the Reference
Corporate Dealers actually submit bids). Each bid shall be expressed in terms of
the Interest Rate to Maturity that the Drs. would bear (quoted as a spread over
4.93% per annum (the "BASE RATE")) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. The Remarketing Dealer
shall have the discretion to select the time at which the Interest Rate to
Maturity is determined on the Determination Date.
26
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account (at a price equal to the lowest
firm, committed bid, as described above) or (ii) sell the Drs. to the Reference
Corporate Dealer submitting the lowest firm, committed, bid. If two or more
Reference Corporate Dealers submit equivalent bids which constitute the lowest
firm, committed bid, the Remarketing Dealer may in its sole discretion elect to
sell the Drs. to any such Reference Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Drs. The United
States Treasury security selected by the Remarketing Dealer will be based on the
standard market convention for the benchmark used in the swap market to settle
an option on the 10-year then on-the-run Treasury security.
"COMPARABLE TREASURY PRICE" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, then (i) the average of such
Reference Treasury Dealer Quotations for such Remarketing Date, after excluding
the highest and lowest of such Reference Treasury Dealer Quotations (unless
there is more than one highest or lowest quotation, in which case only one such
highest and/or lowest quotation shall be excluded), or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. The Remarketing
Dealer shall have the discretion to select the time at which the Comparable
Treasury Price is determined on the Determination Date and the number of
Reference Treasury Dealer Quotations (which shall be at least three) to be
obtained.
"DOLLAR PRICE" means the discounted present value to the Remarketing Date of
the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y) maturing on the Stated
27
Maturity Date and (z) bearing interest from the Remarketing Date, payable semi-
annually (assuming a 360-day year consisting of twelve 30-day months) on the
interest payment dates of the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate (defined below).
"REFERENCE CORPORATE DEALER" means X.X. Xxxxxx Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Company
acceptable to X.X. Xxxxxx Securities Inc. and the Company.
"REFERENCE TREASURY DEALER" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each Reference
Treasury Dealer, the offer price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) for settlement on the Remarketing Date,
quoted in writing to the Remarketing Dealer by such Reference Treasury Dealer by
3:30 p.m., New York City time, on the Determination Date.
"TELERATE PAGE 500" means the display designated as "Telerate Page 500" on
Dow Xxxxx Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer price specified in
clause (a) of the definition of Comparable Treasury Price as may replace Dow
Xxxxx Markets Limited.
"TREASURY RATE" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
5. Repurchase. If the Remarketing Dealer does not purchase all of the
Drs. on the Remarketing Date, then holders will be required to tender, and the
Company shall repurchase, on the Remarketing Date, at a price equal to 100% of
the principal amount of the Drs. plus all accrued interest, if any, on the Drs.
to (but excluding) the Remarketing Date, all Drs. that have not been purchased
by the Remarketing Dealer on the Remarketing Date.
6. Redemption. If the Remarketing Dealer has elected to remarket the
Drs. on the Remarketing Date, the Company shall have the right to redeem the
Drs., in whole but not in part, from the Remarketing Dealer on the Remarketing
Date at a redemption price equal to the greater of (i) 100% of the aggregate
28
principal amount of the Drs. and (ii) the Dollar Price, by giving written notice
of such redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Drs. to the Remarketing Dealer on the
Determination Date in accordance with Section 4 of this Security,
immediately after the deadline set by the Remarketing Dealer for receiving
such bids has passed.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
7. Optional Redemption After the Remarketing Date. After the Remarketing
Date, if the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date, the Drs. will be redeemable (a "POST-REMARKETING REDEMPTION"),
in whole or in part, at the option of the Company at any time at a redemption
price equal to the greater of (i) 100% of the principal amount of such Drs. or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including the portion of any such payments
of interest accrued as of the redemption date) discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
month) at the Adjusted Treasury Rate (as defined below) (determined on the third
Business Day preceding such redemption date), plus, in each case, accrued and
unpaid interest thereon to (but excluding) the redemption date.
Notice of any Post-Remarketing Redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each holder of the Drs.
to be redeemed. Unless the Company defaults in payment of the redemption price,
on and after the redemption date, interest will cease to accrue on the Drs. or
portions thereof called in connection with a Post-Remarketing Redemption.
"ADJUSTED TREASURY RATE" means (i) the arithmetic mean of the yields under
the heading "Week Ending" published in the Statistical Release most recently
published prior to the date of determination under the captions "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to the maturity, as of the redemption date,
of the principal being redeemed, plus (ii) 0.20%. If no maturity set forth
under the heading exactly corresponds to the maturity of such principal, yields
for the two published maturities most closely corresponding to the maturity of
such principal shall be calculated pursuant to the immediately preceding
sentence, and the
29
Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding in each of the relevant periods to the nearest
month.
"STATISTICAL RELEASE" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively-traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the terms of the Drs., then
such other reasonably comparable index which shall be designated by the Company.
8. Certain Covenants. The Indenture restricts the Company's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Company is obliged to abide by certain covenants, including covenants limiting
the amount of debt it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant requiring it to maintain its material
properties, and a covenant requiring it to pay or discharge all taxes, all as
more fully described in the Indenture. All of such covenants are subject to the
covenant defeasance procedures outlined in the Indenture.
9. Effect of Event of Default. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
10 Tax Treatment; Agreement to Tender. The Company and the holders of
this Security (and each holder of a beneficial interest herein) by accepting
this Security, agree to treat the Drs. as fixed rate debt instruments that
mature on the Remarketing Date for United States Federal income tax purposes and
that are reissued on the Remarketing Date should the Remarketing Dealer remarket
the Securities. Furthermore, each holder of this Security (and each holder of a
beneficial interest herein) irrevocably agrees that this Security shall
automatically be tendered on the Remarketing Date (a) to the Remarketing Dealer
if the Remarketing Dealer elects to remarket the Securities on the terms and
conditions set forth herein or (b) to the Company if the Remarketing Dealer does
not remarket the Securities on the terms and conditions set forth herein.
11. Amendments and Waivers. Modifications and amendments of the Indenture
will be permitted to be made only with the consent of the holders of not less
than a majority in principal amount of all outstanding Debt Securities issued
under the Indenture that are affected by such modification or amendment;
provided that no such modification or amendment may, without the consent of the
holder of each such Debt Security affected thereby, (a) change the stated
maturity of the principal of, or any installment of interest or principal on,
any such Debt Security; (b) reduce the principal of, or the rate or amount of
interest on, or any
30
amount payable upon redemption of, any such Debt Security, or adversely affect
any right of repayment of the holder of any such Debt Security; (c) change the
place of payment, or the coin or currency, for payment of principal of or
interest on any such Debt Security; (d) impair the right to institute suit for
the enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above-stated percentage of outstanding Debt Securities necessary to
modify or amend the Indenture, or to waive compliance with certain provisions
thereof or certain defaults and consequences thereunder; or (f) modify any of
the foregoing provisions or any of the provisions relating to the waiver of
certain past defaults or certain covenants, except to increase the required
percentage to effect such action or to provide that certain other provisions may
not be modified or waived without the consent of the holder of such Debt
Security.
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Trustee without the consent of any holder of Debt
Securities for any of the following purposes: (a) to evidence the succession of
another person to the Company as obligor under the Indenture; (b) to add to the
covenants, agreements and obligations of the Company for the benefit of the
holders of all Debt Securities or to surrender any right or power conferred upon
the Company in the Indenture; (c) to provide for the acceptance of appointment
by a successor Trustee or facilitate the administration of the trusts under the
Indenture by more than one Trustee; (d) to cure any ambiguity, defect or
inconsistency in the Indenture; (e) to secure the Debt Securities; or (f) to
make any other change that does not adversely affect the rights of any Holder of
Debt Securities.
12. Denominations; Transfer. (a) The Securities are issuable in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.
(b) A certificate in global form representing all or a portion of the
Securities may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such Securities or a nominee of such successor
Depositary.
13. No Liability of Certain Persons. No past, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement of
the Company contained under this Security or the Indenture. Each holder by
accepting this Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of this Security.
31
14. Governing Law. The laws of the State of New York govern the Indenture
and this Security.
32
SCHEDULE A
SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT
The following notations in respect of changes in the outstanding principal
amount of this Security have been made:
CHANGE IN
INITIAL OUTSTANDING OUTSTANDING
PRINCIPAL PRINCIPAL PRINCIPAL
DATE AMOUNT AMOUNT AMOUNT NOTATION
------------ ------------ ------------ ------------ ------------
ARTICLE 3.
The Securities
Section 3.01. Title and Terms. The Securities shall be known and designated
as the "6% DEALER REMARKETABLE SECURITIES DUE 2013" of the Company. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $200,000,000 except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.04, 3.05 or 9.06.
Unless the context otherwise requires, the Original Securities and the
Exchange Securities shall constitute one series for all purposes under the
Indenture, including with respect to any amendment, waiver, acceleration or
other Act of Holders or redemption.
Section 3.02. Denominations. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1,000 and integral
multiples thereof.
Section 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or one of its Vice Presidents, thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
33
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and make available for delivery such Securities as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery of this
Indenture and after the effectiveness of a registration statement under the
Securities Act with respect thereto, the Company may deliver Exchange Securities
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Exchange Securities
and a like principal amount of Original Securities for cancellation in
accordance with this Indenture, and the Trustee in accordance with the Company
Order shall authenticate and make available for delivery such Securities. Prior
to authenticating such Exchange Securities, and accepting any additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, if requested, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating in
----
substance.
(a) that all conditions hereunder precedent to the authentication and
delivery of such Exchange Securities have been complied with and that such
Exchange Securities, when such Securities have been duly authenticated and
delivered by the Trustee (and subject to any other conditions specified in such
Opinion of Counsel), have been duly issued and delivered and will constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
(b) that the issuance of the Exchange Securities in exchange for Original
Securities has been effected in compliance with the Securities Act.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the
34
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section 3.04. Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities, which Securities are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution thereof. If temporary Securities are
issued, the Company will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office or agency of the Company
designated pursuant to Section 10.02, without charge to the Holder. Upon
-----
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
Section 3.05. Global Securities. (a) Each Global Security authenticated
under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Company fails to appoint a successor Depositary, (ii) the
Company executes and delivers to the Trustee a Company Order stating that it
elects to cause the issuance of the Securities in certificated form and that all
Global Securities shall be exchanged in whole for Securities that are not Global
Securities (in which case such exchange shall be effected by the Trustee) or
(iii) there shall have occurred and be continuing an Event of Default with
respect to the Security.
35
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article 3. If any Global Security is to be exchanged for
-
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article 3 or (ii) the principal amount thereof
-
shall be reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other Security
to be so exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 3.06(c)
-------
and as otherwise provided in this Article 3, authenticate and deliver any
-
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article 3 if such order, direction or request is given or
-
made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article 3 or otherwise, shall be authenticated
-
and delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the Depositary for
such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
36
Section 3.06. Registration, Registration of Transfer and Exchange;
Securities Act Legends. (a) Registration, Registration of Transfer and Exchange
Generally. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 10.02 being
-----
herein sometimes collectively referred to as the "SECURITY REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers and exchanges of
Securities. The Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose
of registering Securities and transfers and exchanges of Securities as herein
provided. Such Security Register shall distinguish between Original Securities
and Exchange Securities.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 10.02 for such purpose, the
-----
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations, of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of this
Section 3.06, Securities may be exchanged for other Securities of any authorized
----
denominations, of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and (except for the differences between Original Securities and Exchange
Securities provided for herein) entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
37
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 3.03, 3.04, 3.05, 3.06, or 9.06 not involving any
---- ---- ---- ---- ----
transfer.
(b) Certain Transfers and Exchanges. Notwithstanding any other provision
of this Indenture or the Securities, transfers and exchanges of Securities and
beneficial interests in a Global Security of the kinds specified in this Section
306(b) shall be made only in accordance with this Section 3.06(b).
-------
(i) Restricted Global Security to Regulation S Global Security. If the
owner of a beneficial interest in the Restricted Global Security wishes at
any time to transfer such interest to a Person who wishes to acquire the
same in the form of a beneficial interest in the Regulation S Global
Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) subject to the Applicable Procedures. Upon
receipt by the Trustee, as Security Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Regulation S Global Security in a specified principal
amount be credited to a specified Agent Member's account and that a
beneficial interest in the Restricted Global Security in an equal principal
amount be debited from another specified Agent Member's account and (B) a
Regulation S Certificate, duly executed by the owner of such beneficial
interest in the Restricted Global Security or his attorney duly authorized
in writing, then the Trustee, as Security Registrar but subject to Clause
(b)(iv) below, shall reduce the principal amount of the Restricted Global
Security and increase the principal amount of the Regulation S Global
Security by such specified principal amount as provided in Section 3.05(c).
-------
(ii) Regulation S Global Security to Restricted Global Security. If
the owner of a beneficial interest in the Regulation S Global Security
wishes at any time prior to the expiration of the Restricted Period to
transfer such interest to a Person who wishes to acquire the same in the
form of a beneficial interest in the Restricted Global Security, such
transfer may be effected only in accordance with this Clause (b)(ii) and
subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (A) an order given by the Depositary or its
authorized representative directing that a beneficial interest in the
Restricted Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited from
another specified Agent Member's account and (B) a Restricted Securities
Certificate, duly executed by the owner of such beneficial interest in the
Regulation S Global Security or his attorney duly authorized in writing,
then the Trustee, as Security Registrar, shall reduce the principal amount
38
of the Regulation S Global Security and increase the principal amount of
the Restricted Global Security by such specified principal amount as
provided in Section 3.05(c).
-------
(iii) Exchanges between Global Security and Non-Global Security. A
beneficial interest in a Global Security may be exchanged for a Security
that is not a Global Security as provided in Section 3.05, provided that,
----
if such interest is a beneficial interest in the Restricted Global
Security, or if such interest is a beneficial interest in the Regulation S
Global Security prior to the expiration of the Restricted Period, then such
interest shall be exchanged for a Restricted Security (subject in each case
to Section 3.06(c)).
--------
(iv) Regulation S Global Security to be Held Through Euroclear or
Cedel during Restricted Period. The Company shall use its best efforts to
cause the Depositary to ensure that beneficial interests in the Regulation
S Global Security may be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members acting for the
account thereof) during the Restricted Period, and no person shall be
entitled to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account; provided
that this Clause (b)(iv) shall not prohibit any transfer or exchange of
such an interest in accordance with Clause (b)(ii) above.
(c) Securities Act Legends. Rule 144A Securities and their respective
Successor Securities shall bear a Restricted Securities Legend, and Regulation S
Securities and their Successor Securities shall bear a Regulation S Legend,
subject to the following:
(i) subject to the following Clauses of this Section 3.06(c), a
-------
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(ii) subject to the following Clauses of this Section 3.06(c), a new
-------
Security which is not a Global Security and is issued in exchange for
another Security (including a Global Security) or any portion thereof, upon
transfer or otherwise, shall bear the Securities Act Legend borne by such
other Security, provided that, if such new Security is required pursuant to
Section 3.06(b)(iii) to be issued in the form of a Restricted Security, it
------- ---
shall bear a Restricted Securities Legend and, if such new Security is so
required to be issued in the form of a Regulation S Security, it shall bear
a Regulation S Legend;
39
(iii) Exchange Securities shall not bear a Securities Act Legend;
(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security which
does not bear a Securities Act Legend may be issued in exchange for or in
lieu of a Security (other than a Global Security) or any portion thereof
which bears such a legend if the Trustee has received an unlegended
Security, duly executed by the Holder of such legended Security or his
attorney duly authorized in writing, and after such date and receipt of
such certificate, the Trustee shall authenticate and deliver such a new
Security in exchange for or in lieu of such other Security as provided in
this Article 3;
-
(v) a new Security which does not bear a Securities Act Legend may
be issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if, in the
Company's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Company, shall
authenticate and deliver such a new Security as provided in this Article 3;
-
and
(vi) notwithstanding the foregoing provisions of this Section
3.06(c), a Successor Security of a Security that does not bear a particular
-------
form of Securities Act Legend shall not bear such form of legend unless the
Company has reasonable cause to believe that such Successor Security is a
"RESTRICTED SECURITY" within the meaning of Rule 144, in which case the
Trustee, at the direction of the Company, shall authenticate and deliver a
new Security bearing a Restricted Securities Legend in exchange for such
Successor Security as provided in this Article 3.
-
Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by either of them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
40
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.08. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "DEFAULTED
INTEREST") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
41
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.09. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.08) interest on
----
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
42
None of the Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Security in global form.
Section 3.10. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures.
Section 3.11. Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360 day year of twelve 30-day months.
Section 3.12. Cusip Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
43
ARTICLE 4.
Satisfaction and Discharge
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to (i) rights of registration of
transfer and exchange and the Company's right of optional redemption, (ii)
substitution of apparently mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Holders to receive payment of principal and interest
on the Securities, (iv) rights, obligations and immunities of the Trustee under
the Indenture and (v) rights of the Holders of the Securities as beneficiaries
of the Indenture with respect to any property deposited with the Trustee payable
to all or any of them), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.07 and (ii) Securities for
----
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have been
-----
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and inter-
44
est to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article 4.01, the obligations of the Company to the Trustee under Section
----
6.07 and, if money shall have been deposited with the Trustee pursuant to
----
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
---- -----
Section 4.02. Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.03, all money deposited with the Trustee pursuant
-----
to Section 4.01 shall be held in trust and applied by it, in accordance with the
----
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee but such money need not be separated from other
funds except to the extent required by law.
ARTICLE 5.
Remedies
Section 5.01. Events of Default. "EVENT OF DEFAULT", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure to pay the principal of (or premium, if any, on) any
Security at its Maturity; or
45
(2) failure to pay any interest upon any Security when it becomes due
and payable, and continuance of such default for a period of 30 days; or
(3) failure to perform or comply with the provisions of Section 8.01;
----
or
(4) failure to perform any other covenant or agreement of the Company
in this Indenture or Securities (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 10% in principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "NOTICE OF DEFAULT"
hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company (including a default with respect to Securities
of any series other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness of the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall
have resulted in such indebtedness in an aggregate principal amount
exceeding $10,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities a written notice specifying
such default and requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; provided,
--------
however, that if such default under such bond, debenture, note, mortgage,
-------
indenture or other instrument or evidence of indebtedness shall be remedied
or cured by the Company or waived pursuant to such agreement or instrument,
then, unless the maturity of the Securities shall have been accelerated as
provided herein, the Event of Default hereunder by reason thereof shall be
46
deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or the Holders. Subject
to the provisions of Section 6.01 and 6.02, the Trustee shall not be deemed
to have knowledge of such default unless either (A) a Responsible Officer
of the Trustee shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company, from
any Holder, from the holder of any such indebtedness or from the trustee
under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to have a case commenced against it or
to seek an order for relief under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law or the taking of corporate
action by the Company in furtherance of any such action.
47
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 5.01(6) or
----
(7)) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities may declare all of the Securities to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal and any accrued interest, if any,
shall become immediately due and payable. If an Event of Default specified in
Section 5.01(6) or (7) occurs, the principal and any accrued interest on the
Securities then Outstanding shall ipso facto become immediately due and payable
without any declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(ii) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
----
48
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, if any, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company or any other obligor upon the Securities, or
upon the property of the Company or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the
49
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
----
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07; and
----
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively.
50
Section 5.07. Limitation on Suits. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.08) interest on such Security on the respective Stated Maturities
----
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then
51
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.07, no right or remedy
----
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders. The Holders of a majority in aggregate
principal amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past default hereunder
and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
52
(2) in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, including attorney's
fees and expenses in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee or the Company.
Section 5.15. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 6
The Trustee
Section 6.01. Certain Duties and Responsibilities. Except during the
continuance of an Event of Default, the duties and responsibilities of the
Trustee shall be as provided by the Indenture. During the existence of an Event
of Default, the Trustee will exercise such rights and powers vested in it under
the Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise under the circumstances in the conduct of such
person's own affairs. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any
53
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.02. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(4), no such notice to Holders shall be given
----
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "DEFAULT" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
----
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate or opinion;
(d) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the
54
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal
---- ----
55
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture, including, but not limited to the costs incurred in
connection with collection (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability damage, claim or expense, including taxes (other
than taxes based on the income of the Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against or investigating any claim (including
any claim by the Company) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 6.07, except with respect to funds held in
----
trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(5) or Section 5.01(6), the expenses
---- ----
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
56
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 6.08. Disqualification; Conflicting Interest. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
Section 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000 and its Corporate Trust Office in The City of Chicago,
State of Illinois. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
----
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
(d) If at any time:
57
(i) the Trustee shall fail to comply with Section 6.08 after written
----
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
----
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
----
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.06. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
58
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee and the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
59
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
----
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
----
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each October 1,
following
60
the date of this Indenture deliver to Holders a brief report, dated as of such
October 1, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange or of any delisting thereof.
Section 7.04. Reports by Company. The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 30 days after the same is so required to be
filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 7.05. Officers' Certificate with Respect to Change in Interest
Rates. Within five days after the day on which any Special Interest begins
accruing, and within five days after any Special Interest ceases to accrue, the
Company shall deliver an Officers' Certificate to the Trustee stating the
interest rate thereupon in effect for the Original Securities (if any are
Outstanding) and the date on which such rate became effective.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
61
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee by the Person
(if other than the Company) formed by such consolidation or into which the
Company shall have been merged or by the corporation which shall have
acquired the Company's assets;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.02. Successor Substituted. Upon any consolidation of the Company
with, or merger of the Company into, any other Person or any transfer,
62
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of the Company as an entirety in accordance with Section
8.01, the successor Person shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company prior to such succession, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for that purpose pursuant to such provisions. All
Securities so issued in all respects have the same legal rank and benefit under
this Indenture as Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all such Securities had been issued prior
to the date of such succession. In case of any such consolidation, merger, sale
or conveyance, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
ARTICLE 9
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution
of the Company and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
63
(3) to secure the Securities; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action pursuant to this Clause (4) shall not
adversely affect the interests of the Holders in any material respect.
Section 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution of the Company and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable thereon, or change the
place of payment where, or the coin or currency in which, any Security or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section 9.02 or Section 10.13,
---- -----
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
64
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
----
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE 10
Covenants
Section 10.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay the principal of (and premium, if any) and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
65
Section 10.02. Maintenance of Office or Agency. The Company will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal or interest on any of the Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
66
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 10.04. Corporate Existence. Subject to Article 8, the Company will
-
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or
67
franchise if the Board of Directors in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.05. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary of the Company to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, as determined by the Board of
Directors in good faith, desirable in the conduct of its business or the
business of any Subsidiary of the Company and not disadvantageous in any
material respect to the Holders.
Section 10.06. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or property of the Company or any of its Subsidiaries, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any of its Subsidiaries; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 10.07. Insurance. The Company covenants and agrees that it will,
and will cause each Subsidiary to, insure and keep insured, with reputable
insurance companies, their principal properties, and such insurance shall be in
such amounts (and with such deductibles) as companies engaged in a similar
business in accordance with good business practice customarily insure properties
of a similar character against loss by fire and from other causes or, in lieu
thereof, in the case of itself or of any one or more of its Subsidiaries, it
will maintain or cause to be maintained a program of self-insurance in
accordance with good business practices.
Section 10.08. Restrictions on Funded Debt of Restricted Subsidiaries. The
Company covenants and agrees that it will not permit any Restricted Subsidiary
to create, issue, incur, assume, or in any other way become liable for any
unsecured Funded Debt unless the Company would be entitled under
68
subparagraph (d) of Section 10.10 of this Indenture to create, issue, incur,
-----
assume or guarantee any Secured Debt not specifically permitted under Section
10.10 of this Indenture but for subparagraph (d) thereof in an amount equal to
-----
such Funded Debt; provided, however, that the foregoing restriction shall not
prevent (i) any Restricted Subsidiary from becoming liable to the Company or to
a Wholly-owned Restricted Subsidiary for Funded Debt or (ii) the extension,
renewal or refunding of any Funded Debt of any Restricted Subsidiary so long as
Consolidated Funded Debt is not thereby increased.
Section 10.09. Restriction on Sales with Leases Back. Except for a sale or
transfer by a Restricted Subsidiary to the Company or a Wholly-owned Restricted
Subsidiary, the Company covenants and agrees that it will not, and will not
permit any Restricted Subsidiary to, sell or transfer any manufacturing plant,
warehouse, retail store or equipment owned and operated or hereafter owned and
operated by the Company or a Restricted Subsidiary, with the intention that the
Company or any Restricted Subsidiary take back a lease thereof, except a lease
for a period, including renewals, not exceeding 24 months, by the end of which
period it is intended that the use of such property or equipment by the lessee
will be discontinued (any such transaction being herein referred to as a "SALE
AND LEASEBACK TRANSACTION"); provided that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary may enter into a Sale and Leaseback
Transaction if the Company or a Restricted Subsidiary would be entitled under
subparagraph (d) of Section 10.10 to create, issue, incur, assume or guarantee
-----
any Secured Debt not specifically permitted under Section 10.10 of this
-----
Indenture but for subparagraph (d) thereof in an amount equal to the
Attributable Debt respecting such Sale and Leaseback Transaction; provided
further that, notwithstanding the foregoing, the Company or any Restricted
Subsidiary may enter into a Sale and Leaseback Transaction if entered into in
respect of property acquired by the Company or a Restricted Subsidiary if such
Sale and Leaseback Transaction is entered into within 24 months from the date of
such acquisition; and provided still further that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may enter into a Sale and
Leaseback Transaction if the Company, within 120 days before or after the sale
or transfer shall have been made by the Company or by any Restricted Subsidiary,
applied or applies an amount equal to the greater of (i) the net proceeds of the
sale of the property sold and leased back pursuant to such arrangement or (ii)
the fair market value of the property so sold and leased back at the time of
entering into such arrangement (as determined by any two of the following; the
Chairman of the Board of the Company, its Chief Executive Officer, its
President, any Vice President of the Company, its Treasurer and its Controller)
to the retirement of Secured Debt of the Company other than at maturity or
pursuant to any mandatory sinking fund payment or any mandatory prepayment
provision.
69
Section 10.10. Restrictions on Secured Debt. The Company covenants and
agrees that it will not, and will not permit any Restricted Subsidiary to,
create, issue, incur, assume or guarantee any Secured Debt without making
effective provision (and the Company covenants that in such case it will make or
cause to be made effective provision) whereby the Securities then Outstanding
and any other indebtedness of or guaranteed by the Company or such Restricted
Subsidiary then entitled thereto, shall be secured by such mortgage, pledge,
lien or encumbrance equally and ratably with (or prior to) any and all other
obligations and indebtedness thereby secured for so long as any such other
obligations and indebtedness shall be so secured; provided, however, that the
foregoing covenants shall not be applicable to the following:
(a) (i) Any mortgage, pledge, lien or other encumbrance on any property
acquired or constructed by the Company or a Restricted Subsidiary and created
contemporaneously with, or within 24 months after, such acquisition or the
completion of such construction and commencement of full operation of such
property, whichever is later, to secure or provide for the payment of any part
of the purchase or construction price of such property, or (ii) the acquisition
by the Company or a Restricted Subsidiary of property subject to any mortgage,
pledge, lien or other encumbrance upon such property existing at the time of
acquisition thereof, whether or not assumed by the Company or such Restricted
Subsidiary, or (iii) any conditional sales agreement or other title retention
agreement with respect to any property hereafter acquired, provided that the
lien of any such mortgage, pledge, lien or other encumbrance or agreement does
not spread to other property except unimproved real property previously owned
upon which any new construction has taken place and subsequent additions to such
acquired or constructed property.
(b) Any mortgage, pledge, lien, or other encumbrance created for the sole
purposes of extending, renewing or refunding, in whole or part, any mortgage,
pledge, lien or other encumbrance permitted by this Section 10.10 or any
-----
mortgage, pledge, lien or other encumbrance securing the indebtedness of the
Company or of any Restricted Subsidiary on the date of this Indenture or of a
corporation at the time such corporation becomes a Subsidiary, or any
extensions, renewals or refundings of any such mortgage, pledge, lien or other
encumbrance; provided, however, that the principal amount of indebtedness
secured thereby shall not exceed the principal amount of indebtedness so secured
at the time of such extension, renewal or refunding and that such extension,
renewal or refunding mortgage, pledge, lien or other encumbrance shall be
limited to all or that part of the same properties which secured the mortgage,
pledge, lien or other encumbrance extended, renewed or refunded.
(c) Any Secured Debt of a Restricted Subsidiary owing to the Company or a
Wholly-owned Restricted Subsidiary.
70
(d) Secured Debt of the Company and its Restricted Subsidiaries which
would otherwise be prohibited by the foregoing restrictions (not including
Secured Debt permitted to be secured under subparagraphs (a) through (c) above,
so long as the sum of any such Secured Debt hereafter incurred plus Attributable
Debt of the Company and any Restricted Subsidiaries in respect of existing Sale
and Leaseback Transactions hereafter entered into (excluding Attributable Debt
incurred in respect of any Sale and Leaseback Transaction entered into in
respect of property acquired by the Company or a Restricted Subsidiary not more
than 24 months prior to the date such Transaction is entered into) plus
unsecured Funded Debt of any Restricted Subsidiary hereafter incurred (excluding
unsecured Funded Debt incurred through the extension, renewal or refunding of
Funded Debt where Consolidated Funded Debt was not thereby increased and
excluding any Funded Debt owed to the Company or a Wholly-owned Restricted
Subsidiary) does not at the time exceed 20% of Consolidated Net Tangible Assets.
Section 10.11. Restrictions on Permitting Unrestricted Subsidiaries to
become Restricted Subsidiaries.
(a) The Company will not permit any Unrestricted Subsidiary to be
designated as a Restricted Subsidiary unless such Subsidiary has outstanding no
Secured Debt, Funded Debt and/or Attributable Debt in respect of Sale and
Leaseback Transactions except such Secured Debt, Funded Debt and Attributable
Debt as the Company could permit it to become liable for immediately after
becoming a Restricted Subsidiary under the provisions of Sections 10.08, 10.09
----- -----
and 10.10 of this Indenture.
-----
(b) Promptly after the adoption of any Board Resolution designating a
Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted
Subsidiary as a Restricted Subsidiary, a copy thereof shall be filed with the
Trustee, together, in the case of the designation of an Unrestricted Subsidiary
as a Restricted Subsidiary, with an Officers' Certificate stating that the
provisions of this Section have been complied with in connection with such
designation.
Section 10.12. Statement by Officers as to Default. Reference is made to
Section 314(a)(4) of the Trust Indenture Act.
Section 10.13. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 10.07 to 10.11, if before the time for such compliance the Holders of
----- -----
at least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and,
71
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
ARTICLE 11
Redemption of Securities
Section 11.01. Right of Redemption. The Securities may be redeemed at the
option of the Company, in whole or in part, at any time on or after October 1,
2003, and prior to maturity, at the Redemption Price specified in the Security
together with accrued interest to, but excluding, the Redemption Date.
If less than all the Securities are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the particular
Securities to be redeemed or any portion thereof that is an integral multiple of
$1,000.
The Securities will not have the benefit of any sinking fund.
Section 11.02. Applicability of Article. Redemption of the Securities at
the election of the Company, as permitted by any provision of this Indenture,
shall be made in accordance with such provision and this Article.
Section 11.03. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities pursuant to Section 11.01 shall be evidenced by
-----
a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed.
Section 11.04. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to $1,000
or any integral multiple thereof) of the principal amount of Securities of a
denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of
72
any Securities selected for partial redemption, the principal amount thereof to
be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 11.05. Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) CUSIP numbers of the Securities to be redeemed (if any).
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.06. Deposit of Redemption Price. Prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
-----
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
73
Section 11.07. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price plus accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Securities for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price together with accrued interest to the Redemption Date;
provided, however, that instalments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
----
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Security.
Section 11.08. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
designated for that purpose pursuant to Section 10.02 (with, if the Company or
-----
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE 12
Defeasance and Covenant Defeasance
Section 12.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option by Board Resolution, at any time, in
accordance with the Exchange and Registration Rights Agreement, elect to have
either Section 12.02 or Section 12.03 applied to the Outstanding Securities upon
----- -----
compliance with the conditions set forth below in this Article 12.
--
74
Section 12.02. Defeasance and Discharge. Upon the Company's exercise of
the option provided in Section 12.01 applicable to this Section, the Company
shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "DEFEASANCE"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same) except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 12.04 and as more fully set forth in such Section, payments in respect
-----
of the principal of (and premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (C) the rights,
---- ---- ---- ----- -----
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article 12. Subject to compliance with this Article 12, the Company may exercise
-- --
its option under this Section 12.02 notwithstanding the prior exercise of its
-----
option under Section 12.03.
-----
Section 12.03. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 12.01 applicable to this Section, (i) the Company
-----
shall be released from its obligations under Sections 10.05 through 10.11,
----- -----
inclusive, and Clauses (3), (4) and (5) of Section 8.01, (ii) the occurrence of
----
an event specified in Sections 5.01(3) (with respect to Clauses (1), (3), (4) or
----
(5) of Section 8.01), 5.01(4) (with respect to any of Sections 10.05 through
---- -----
10.11, inclusive) and 5.01(5) shall not be deemed to be an Event of Default
-----
shall cease to be effective on and after the date the conditions set forth below
are satisfied (hereinafter, "COVENANT DEFEASANCE"). For this purpose, such
covenant defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section, Clause or Article, whether directly or indirectly by reason of
any reference elsewhere herein to any such Section, Clause or Article or by
reason of any reference in any such Section, Clause or Article to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 12.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 12.02 or
Section 12.03 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
75
requirements of Section 6.09 who shall agree to comply with the provisions
----
of this Article 12 applicable to it) as trust funds in trust for the
--
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
the principal of, premium, if any, and each instalment of interest on the
Securities on the Stated Maturity of such principal or instalment of
interest in accordance with the terms of this Indenture and of such
Securities.
(2) In the case of an election under Section 12.02, the Company shall
-----
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 12.03, the Company shall
-----
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in Section 6.08 and for purposes
----
of the Trust Indenture Act with respect to any securities of the Company.
76
(6) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default shall have occurred and be
continuing.
(7) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
12.02 or the covenant defeasance under Section 12.03 (as the case may be)
-----
have been complied with.
(9) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
Section 12.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.03, all money and U.S. Government Obligations (including
-----
the proceeds thereof) deposited with the Trustee (or other qualifying trustee--
collectively, for purposes of this Section 12.05, the "TRUSTEE") pursuant to
-----
Section 12.04 in respect of the Securities shall be held in trust and applied by
-----
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.04 or the principal and interest received in
-----
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article 12 to the contrary notwithstanding, the Trustee
--
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.04
-----
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee,
77
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
Section 12.06. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with Section 12.02 or 12.03 by reason of any
----- -----
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 12 until such time as the Trustee
--
or Paying Agent is permitted to apply all such money in accordance with Section
12.02 or 12.03; provided, however, that if the Company makes any payment of
----- -----
principal of (and premium, if any) or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Security to receive such payment from the money held by
the Trustee or the Paying Agent.
_____________________________
78
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
RITE AID CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Exec. V.P. & CFO
Attest:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
Senior Vice President, General Counsel and Secretary
XXXXXX TRUST AND SAVINGS BANK
By: /s/ XX Xxxxxxx
----------------------------------
Name: X.X. Xxxxxxx
Title: Assistant Vice President
Attest:
/s/ X. Xxxxxx
___________________________
Assistant Secretary
79
ANNEX A --
Form of Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 3.06(b)(i) of the Indenture)
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Indenture Trust Administration
Re: 6% Dealer remarketable securities(SM) due 2013 of Rite Aid
Corporation (the "SECURITIES")
Reference is made to the Indenture, dated as of September 22, 1998
(the "INDENTURE"), from Rite Aid Corporation (the "COMPANY") to Xxxxxx Trust and
Savings Bank, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "SECURITIES
ACT") are used herein as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
A-1
The Owner has requested that the Specified Securities be transferred
to a person (the "TRANSFEREE") who will take delivery in the form of a
Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
1. Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(a) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(b) the offer of the Specified Securities was not made to a
person in the United States;
(c) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another designated
offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(d) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(e) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(b)(1) or (b)(3)
have been satisfied; and
(f) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
A-2
2. Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(a) the transfer is occurring after a holding period of at least
two years (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and
is being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(b) the transfer is occurring after a holding period of at least
three years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
-----------------------------------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
--------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
A-3
ANNEX B --
Form of Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 3.06(b)(ii) of the Indenture)
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Indenture Trust Administration
Re: 6% Dealer remarketable securities(SM) due 2013 of Rite Aid Corporation
(the "SECURITIES")
Reference is made to the Indenture, dated as of September 22, 1998 (the
"INDENTURE"), from Rite Aid Corporation (the "COMPANY"), to Xxxxxx Trust and
Savings Bank, as Trustee. Terms used herein and defined in the Indenture or in
Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the "SECURITIES
ACT") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
CUSIP No(s). ___________________________
ISIN No(s), If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
B-1
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, (i) the Owner is not a U.S. Person (as
defined in the Indenture) and (ii) such transfer is being effected in accordance
with Rule 144A or Rule 144 under the Securities Act and all applicable
securities laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as:
1. Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(a) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"QUALIFIED INSTITUTIONAL BUYER" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified insti tutional buyer;
and
(b) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer; and
2. Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(a) the transfer is occurring after a holding period of at least one
year (computed in accordance with paragraph (d) of Rule 144) has elapsed
since the Specified Securities were last acquired from the Company or from
an affiliate of the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(b) the transfer is occurring after a holding period of at least two
years has elapsed since the Specified Securities were last acquired from
the Company or from an affiliate of the Company, whichever is later, and
the Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
---------------------------------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
X-0
XXXXX X --
Xxxx xx Xxxxxxxxxxxx Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to (S) 3.06(c))
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Indenture Trust Administration
Re: 6% Dealer remarketable securities(SM) due 2013 of Rite Aid Corporation
(the "SECURITIES")
Reference is made to the Indenture, dated as of September 22, 1998 (the
"INDENTURE"), from Rite Aid Corporation (the "COMPANY"), to Xxxxxx Trust and
Savings Bank, as Trustee. Terms used herein and defined in the Indenture or in
Rule 144 under the U.S. Securities Act of 1933 (the "SECURITIES ACT") are used
herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 3.06(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a holding period of at least three years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Company or from an affiliate of
the Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
-------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
C-2
